Transgender Individuals in Halakha: A. Conceptual Analysis (Column 701)

The LGBT topic has arisen with greater intensity in the last generation. Regarding homosexuality (male and female), the situation is fairly simple: the act is prohibited—by Torah law for men and apparently by rabbinic law for women. I once suggested the possibility of permitting even the act itself, specifically on the basis of R. Moshe Feinstein’s words, though he strongly opposed such permission. But this is a highly novel argument and I am far from certain about it, so without broad agreement I am very hesitant to rule accordingly. That addresses the “LGB” letters (lesbians, gays, and bisexuals), which concern sexual orientation. With the “T” (trans), far more complex issues arise. There we are not discussing a forbidden act of intercourse as with LGB, but a highly intricate question that concerns the person’s halakhic status: is the individual male or female? Beyond that, some undergo actual physical gender-reassignment surgery, which raises questions about the permissibility of the surgery itself (primarily castration/sterilization prohibitions).

In the past two months I received at least two questions on this matter (see here and here), and I thought it appropriate to devote a special column to it. My treatment of the issue also serves as a model for my belief in first-order psak (see for example columns 332, 562, 637, and more; and also my article here). I will briefly recall that first-order psak has two main components: autonomy and conceptual analysis. A first-order posek does not accord high standing to precedent and recognizes no formal authority after the Talmud. In addition, first-order psak requires conceptual analysis before turning to examine sources and precedents. In not a few cases, such analysis almost obviates reliance on halakhic sources, since it brings us to the warranted conclusion—or at least to a state of doubt with clear sides—where sources likely cannot help us decide. Conceptual analysis exposes the fundamental questions in the discussion and, not infrequently, shows that the sources are irrelevant to at least some of these substantive questions. A particularly sharp example is the discussion about a girl saying Kaddish. My claim there was that there is no point bringing precedents and arguments, because there is nothing to discuss: no one raised a substantive claim—that is, reasons to prohibit a woman from saying Kaddish—simply because there are none. Therefore sources and arguments are unnecessary to permit it.

In one of the aforementioned threads dealing with the transgender question, someone linked to an article by Rabbi Yoschua (Yeshayahu) Katz that extensively surveys the halakhic perspective on this topic. Through it I became acquainted with a fascinating and original person, and it is indeed worthwhile for you to read a bit about him. For me this article constitutes a model of revolutionary psak that employs standard tools, and to some extent it challenges my definitions of first- and second-order psak. Nevertheless, I will state already here that I strongly disagree with his conclusions and also with his halakhic method, primarily because although he is close to first-order in his attitude toward precedents, he lacks conceptual analysis. I also have criticism of his handling of precedents and standard halakhic aspects, but my principal critique is for the absence of conceptual analysis. I will try to add that analysis, and then in my view it will become clear that what is essential is missing from R. Katz’s article. As noted, this will also sharpen the meaning of first-order psak in its two components.

I will begin not with a critique but with a column that presents the analysis and the picture as I see it, in order to provide a framework for my main critique of his analysis, which will appear in the next column. Pay attention to the stages of the preliminary analysis, for the structure illustrates how to approach a first-order conceptual analysis of questions of this complexity, and why this must precede the halakhic discussion and engagement with sources and arguments.

A schematic description of the issue: eight sectors or two?

The LGBT world comprises three principal axes: sex (physiological-genetic: XX or XY, expressed in bodily characteristics like sex organs), gender (the subjective experience of male or female), and sexual orientation (attraction to men or to women). In principle this space yields eight different possibilities (any 3-length vector whose components are {0,1}). This is, of course, a binary and therefore simplistic description, since there are asexual, agender, bisexual, and bigender persons and other shades in between ad nauseam. For our purposes I will be content to sketch the map according to these eight possibilities, with apologies to the punctilious in queer matters. I think this will suffice to clarify the issue; the rest, go and study.

In the traditional thinking that prevailed until a few generations ago it was clear that these three axes should coincide. One whose sex is male is also male in gender and attracted to women—and vice versa. That is, the map comprised two sectors, not eight. Of course, it was known that opposite sexual orientations existed, but this was treated as a deviation that did not change the essential map. There have always been sick and mentally ill people of various kinds. Dysphoria surrounding gender was less present in the discourse; I think this matter is new.

An illustration and a note on manners

To illustrate: I know a person who is a trans woman—namely, male in sex who regards himself, in terms of gender, as a woman—whose sexual orientation is toward women (he/she has a female partner). He naturally regards himself as a lesbian, but in simple terms he is just straight (a man attracted to women) with “quirks” (since, gender-wise, he sees himself as a woman. He has what is called “gender dysphoria”, although he does not suffer from it, so there is no psychiatric diagnostic issue here).[1]

And please do not ask why I wrote “he” (and not “she”) and “himself” (and not “herself”). This is an opportunity to say in advance that I dismiss outright criticisms from the political correctness police as well as coercive demands to address someone in one form or another. I reserve the freedom to express myself as I see fit. On the other hand, I do not intend thereby to take a stand for the other (more conservative) side. My concern here is a conceptual, substantive inquiry, not manners, and I choose terminology based on convenience, clarity, and habit. If someone doesn’t like it—so be it.

A sober look at the facts

It seems unreasonable to deny these phenomena on the factual plane. Factually, there appear to be individuals whose sex is male but whose subjective feeling is female, and vice versa. This is certainly true regarding sexual orientation, which is easier to define (at least as a feeling). Some indeed deny this factually and see it as inclination of the yetzer or as cultural influences, but that is an unreasonable conservative claim, at least absent supporting evidence.

A person can be born without a hand, or with two hearts and three legs. A person can be born with mental impairments and various psychiatric illnesses. A person can feel that he is Napoleon, Abraham our forefather, a demon, an alien, a cat, or the messiah. So why dismiss out of hand the possibility that a man could be born with feelings of being a woman, or vice versa? Not a few people insistently report that this is their condition, and in my view it is not reasonable to dismiss this a priori (unless there is evidence to the contrary, and I don’t think there is). The fact that these phenomena are new and that they increase as public recognition and legitimacy increases is not evidence that this is nurture rather than nature. Clearly people feared coming out, and in fact lacked a language to define their own feelings; once legitimacy and language emerged, they diagnosed what was in them before. Moreover, even if it is indeed nurture, it is still very plausible that the phenomenon exists factually. At the very least, it is not a possibility that can be dismissed a priori; therefore rejecting the eight-sector picture I presented is, in my eyes, unreasonable.

Facts and norms: the naturalistic fallacy

Of course, in these issues too one cannot evade the question of the relationship between facts and norms. The eight-sector picture I described deals with the factual level: there do indeed appear to be eight such sectors in reality. That in itself says nothing about how one ought to relate to them: whether to see them as legitimate, as illness or deviation, and the like. Above I compared gender dysphoria—or any of the six new sectors—to someone who feels he is Napoleon or a cat. We are used to regarding such phenomena as mental illness, and thus perhaps gender dysphoria deserves such treatment. The factual claim that such dysphoria exists does not say whether it is legitimate or not. Those are normative questions, and as we learned from our teacher RRD Dayan ztz”l, judgments and norms are not derived from facts. Factual claims alone are insufficient to produce a normative claim. I can concede the facts and still regard it as a deviation or illness; I can also not see it as such. I can view it as cultural or even as a sham that does not truly exist factually, and still be tolerant toward those declarations on the normative plane.

What is “illness”?

I must add a note on what constitutes illness/deviation, though I have discussed this at length elsewhere (see, for example, in my article on Halakha and reality, and the discussion with Yoram Yovel in columns 25–26. A concise review with references appears in column 146). The assertion that some symptom is an illness or deviation is empty of content. It is a statement made under the veneer of science, but its real meaning is “I deem this undesirable.” Although Foucault is the father of this approach, it is nonetheless correct (to teach you that even a broken clock tells the right time twice a day): there is no scientific definition for concepts like illness or deviation, and even if there is, it is based on value-laden conceptions, not on facts and science alone (even Yoram Yovel conceded as much in our discussion). I claim this regarding physical illnesses as well, not only mental ones. In the physical domain we agree that what is painful or dangerous is undesirable, so there it is easier to use terms like “illness.” But in principle, even there, to say that something is an illness is merely to say it is undesirable (because I do not want pain or death).

So too for claims that these phenomena are “unnatural.” I have never understood what exactly such claims mean. Is a height of 1.95 meters natural? It is unusual compared with the norm. Is anything unusual unnatural? If so, the claim is emptied of content—and it certainly bears no relation to whether a thing is desirable. So what precisely is meant by the claim that homosexuality or dysphoria is “unnatural”? That it characterizes only a small portion of the population? So does the aforementioned height. Once again, Foucault sneaks in through the back door.

Therefore, I will allow myself below to ignore the unnecessary and empty question of whether this is illness or deviation and/or whether it is natural, and focus on the sole relevant question: whether it is desirable and how it is right to relate to it. This is a direct normative formulation that does not hide behind a confusing scientific veneer, as if this were a discussion about facts. If the question were whether it is an illness, then it would be natural to turn to experts (physicians or psychiatrists). But that question has nothing to do with expertise. It is a purely value-laden question, and experts have no added value regarding it.

Extreme queerness: what is a woman?

Since we mentioned Foucault, let us take one step further and discuss the postmodern emptying of queer concepts. In columns 497 and 504 I explained the innovation in extreme queer conceptions; I will briefly repeat it here.

Moderate queer views attempt to argue that we should acknowledge these phenomena as existing (and of course also view them as neutral phenomena—not undesirable, not illness or deviation). In this I tend to agree. As I explained, there is no point denying reality even if it doesn’t sit well with us. Our normative stance (the “ought”) should not determine the facts (the “is”). That would be the inverted naturalistic fallacy (really a kind of pragmatism). In the naturalistic fallacy we let facts determine norms: if homosexuality is unnatural then it is negative. In the inverted fallacy we go the other way: if it is negative then it does not exist (or is not natural).

The factual claims above assume that there are certain characteristics of the female gender and others of the male gender. This is not a closed list, and the definitions are flexible and not mathematical—but even so there is such a definition. Flexible definitions of this kind exist in medicine, and even more so in psychiatry. For example, one might require six out of ten features, in varying intensities, to determine that someone has disease X (physical or mental). In my view that is a definition, because it provides some criterion by which to decide the question at hand. If there exists such a flexible definition for the two genders, one can say that a person whose sex is female can feel, in terms of gender, like a man. If he has feelings that meet the above definition of “male,” then gender-wise he is male. That is the factual claim.

Up to this point we have a sober, moderate queer view. Now comes the step of emptying. Next arose a more extreme queer conception that holds that each person defines their own gender as they see fit. If a certain person sees himself as a woman, we must honor this: he is indeed a woman. But as Matt Walsh wonders in the film discussed in column 497: what precisely is that person supposed to feel when he says he feels like a woman? If there truly is no set of traits that (even flexibly) defines the two genders, then the concepts “woman” and “man” are emptied of content. In the absence of any objective definition for the concept, it remains empty. A person can feel like a worm and decide that a “worm” is a man, and thus demand we regard him as a man. Likewise, another person can see himself as a worm but consider a worm to be a woman, and demand we regard him as a woman. These concepts become circular and thus contentless. The only way to define “woman” under extreme queerness is: a woman is anyone who feels herself to be a woman. But an definition cannot contain the very concept it seeks to define, for the purpose of a definition is to clarify the concept at issue. If you don’t understand it, a circular definition won’t help. In the same way one cannot define a Jew as follows: a Jew is anyone who feels he is a Jew. Despite the folly of that circular definition, it is astounding how many adopt such a “definition” for their (secular) Jewishness. Well, there is in fact no such concept as “secular Judaism,” so circularity is inevitable. But by the same token, extreme queerness does not say the concept “woman” is flexible or that one may use it as one understands; its claim is essentially that there is no such concept. It is empty. That is a legitimate claim, but they will never say it that way, since once one grasps that meaning, the demand that we treat that person as a woman or as a man becomes itself empty. One cannot demand that I attach an empty word to a person just because he wants me to.

To sharpen: one could try to demand that I see a specific person as a woman even though in my view he is a man. The claim would be that I am mistaken about the definition of woman or man. I am not necessarily accepting that demand; I might agree or disagree, but it is not conceptually absurd. In extreme queer discourse, however, that demand is utterly absurd: you are demanding that I use a word that has no meaning, just because you want me to. I can find no justification for such a demand. It is blatant coercion, even abuse.

I added this section only to complete the conceptual picture. From here on I will ignore the circular, empty-minded adherents of extreme queerness. They are just mumbling meaningless words. For our purposes, the discussion concerns only the moderate queerness described thus far. That view first demands that we acknowledge the facts of the eight-sector picture. Thereafter it demands that we treat such people in a proper, ordinary way like anyone else—that is, to see this as a normal phenomenon just like the two traditional genders. In short: they demand that we treat a trans woman (male in sex, who feels female in gender) as a woman, and a trans man (female in sex, who feels male in gender) as a man.

So what is the argument actually about?

This brings us back to the question of manners. What is the dispute between those who insist that we treat a trans woman as a woman and those who demand we see “him” as a man? Now this is easy to understand: the dispute is over whether the terms “man” and “woman” refer to sex or to gender. Conservatives claim they refer to sex; queers claim they should refer to gender.

As long as we are speaking of manners, then even under the moderate queer picture I do not think I must yield to a trans person’s demand that I address him as a man (or her as a woman). If I regard him as a woman, he cannot force me to address him as a man. There is a dispute between us (at least semantic—and the whole discussion is semantic). Thus, even though I agree there is a dispute with two sides, I refuse to accept the demand that tries to impose terminology upon me that I do not accept or do not like (it suffices that it doesn’t sit well with me). I myself might address him as he wishes, simply because I see no reason to anger or hurt him; but I have no criticism of one who does not. He has the right to use the terminology that seems right to him, just as the trans person has the right to use the terminology that seems right to him. No one can impose terminology on the other.

The harder question is not one of manners but of normative issues. Should he truly be accorded the status of a woman? Should he be allowed to compete in women’s sports, use women’s restrooms, sit in the women’s section, etc.? Here this is no longer a semantic or etiquette question but a normative one, and it requires discussion. The question is not whether I have a right to speak this way or that, but what is the truth: is he a man or a woman?

I will now clarify the nature of this discussion further, and we will see that it is essentially a classic lomdishe chakira (analytical inquiry). This already brings us closer to the halakhic discussion.

The lomdishe inquiry

Formerly the prevailing view was that sex and gender go together: one whose sex is male also feels male in gender, and vice versa. In such a situation there is no trans phenomenon, and thus no ambiguity about any person as to whether to see him as a man or a woman. Everything was clear. But now the factual picture is clearer, and we understand there are eight different sectors. Among other things, there is a male in sex who feels gender-wise like a woman, and vice versa. What shall we do with this person? This is essentially a lomdishe inquiry: one must investigate whether the term “man” (and likewise “woman”) refers to sex or perhaps to gender. If to sex, then a trans woman (AMAB) is halakhically a man; if to gender, a trans woman is halakhically a woman. The Talmudic-style Aramaic I used earlier serves only to illustrate that there is nothing here beyond a standard lomdishe inquiry of the kind we know many of. It is a case of a change in reality that necessitates a new approach, and that approach depends on investigating the original meaning.

Let us take a very similar example in Halakha (see my article here). The Meiri argues that the attitude to non-Jews in his time should be like that to Jews, since they are bound by civilized norms. This is despite the Talmud’s sharp distinction between Jews and non-Jews in many laws. In my article I explained his argument as follows: formerly there was an identity between a non-Jew who practiced idolatry and a rasha (all non-Jews practiced idolatry and behaved wickedly). Now a new reality has arisen: there are non-Jews who practice idolatry but behave humanely (“bound by civilized norms”). How should we apply the halakhic directives to such non-Jews? It depends on the inquiry whether the original Talmudic directives about non-Jews hinged on their idolatry or on their wicked conduct. Although those two features coincided then, there are practical differences for present-day non-Jews now that they have become separated.

Similarly, consider whether liability for damages rests on the owner’s negligence or on the mere fact that his property caused damage. The difficulty arises because in the usual cases there is no difference: in ordinary damage cases the defendant is the owner and he was also negligent. The practical differences arise in cases where there was negligence but no ownership (a thief, a custodian, one who set his fellow’s animal on a field), or where there is ownership but no negligence (not exact, for in such cases all agree there is no liability). In just this way, one can bring countless lomdishe inquiries that determine the law in a new reality wherein two variables that formerly coincided have become separated.

So too one can inquire regarding the halakhic-Torah concepts “man” and “woman”: when the Sages of the Talmud determined who is to be treated as a man and who as a woman, did they intend to tie this to sex or to gender? Remember that in their time these coincided, but there is still room to ask which of the two parameters is the relevant one for them. The practical difference is for trans people, where dysphoria separates sex from gender. This is the basis of the normative—and of course halakhic—discussion whether a trans individual has the status of a man or a woman. It is, in the end, a lomdishe inquiry about the meaning of these two concepts.

Implications: the standing of precedents and of the Talmud

A direct implication of the picture I have outlined is that, due to the change in reality that sparked the discussion, in most cases precedents will not help clarify the picture. For example, the halakhic discussion about the status of trans people is usually tied to the fact that the Talmud uses physical signs to determine a person’s sex, such as in the discussions of tumtum and androgynos, or in various sugyot where signs of physical maturity for males and females are used. From this many infer that according to the Talmud the physical sex determines whether someone is a man or a woman, not the (mental) gender.

But in light of what we have seen, this is incorrect for two reasons: (A) a logical error in inferring from those sugyot; (B) even if there is no logical error, the assumption that the sugyot determine such matters is itself mistaken. I begin with the logical error.

A. The logical error

We saw that in Talmudic times sex and gender were regarded as inseparable. They were not aware of the possibility of gender dysphoria. If so, the fact that the Talmud relied on physical signs does not mean those signs determine a person’s status. It could be that the reliance on physical signs is because sex was regarded as a sign of gender (since in the Sages’ view they always appeared together). If so, the Talmud might have understood gender to be the determinant—and that they chose physical signs to distinguish men from women only because these are more objective and easier to ascertain than gender (try defining male or female feelings). According to this, there is no obstacle to thinking that gender is the relevant parameter and sex is merely an indicator. In lomdishe terms: signs of maleness and femaleness are evidentiary signs, not causal grounds.

This argument assumes the Talmud’s authority is only in normative directives, but the Sages have no authority regarding factual determinations. That is, they may have thought sex and gender always go together, but today our scientific knowledge leads to the conclusion that they erred: there is gender dysphoria. As noted, regarding facts the Talmud has no authority (no one will be healed by Talmudic medical methods, because our current scientific knowledge says they do not work), and therefore we may disagree with its factual conceptions.

B. The normative error

Thus far I argued that one cannot prove from Talmudic sugyot that physical sex determines whether someone is a man or a woman. Now let us assume, for the sake of discussion, that one could indeed prove from the Talmud that physical sex determines a person’s status. I want to claim here that even if that were true, I would still not be obligated to adopt that view.

As I mentioned, in first-order psak precedents have no absolute standing. Yet on several occasions (see, for example, column 393) I have explained that the Talmud has binding authority, like the Sanhedrins (though for the Talmud this is by virtue of public acceptance rather than “lo tasur”). If so, it would seem I should adopt the Talmud’s determination—were there such a determination—that sex is what determines a person’s status. But here I add and argue that in such a matter this is not the case. The reason is that the Talmud’s normative determination that sex is decisive was made within a conceptual framework in which it was obvious that sex always matches gender. In our era, in which the factual understanding has changed, there is room to say that the normative conception can (and perhaps should) change as well.

Normative conceptions are not logically derived from factual premises, but there is no doubt that they are influenced by the factual-scientific picture. If the Sages lived in our time with our information, perhaps they would change their normative position as well—i.e., claim that gender determines. In such a case there is room to argue that even if we had proof of the Talmud’s normative position—that sex determines status—we would still not be obliged to adopt it, due to the change in circumstances.

I have argued similarly in the past about issues such as determining the moment of death (breathing, heart, brain), or various determinations about the status of a fetus (from what stage it is considered a living person whose killing is prohibited), or determining parentage (by genetics or by the womb), and so on. Contrary to what many think, all these are normative determinations, not factual, and therefore they are not entrusted to experts. At the same time, scientific knowledge about these situations can influence our normative conceptions of them. Therefore in all these matters, even if Talmudic precedents could be found to decide the dilemmas, I believe there is no necessity to adopt them, and one may decide contrary to them. Those Talmudic determinations were made by people operating within a very flawed and partial factual knowledge, sometimes entirely mistaken. Therefore their normative positions—being influenced by the factual picture—could also be mistaken. In such a case, in my view, there is no authority even regarding the normative determinations.

This connects to what we saw in column 699, namely that psak regarding specific situations requires first-hand familiarity with the situation. A lack of scientific knowledge about such situations constitutes a material lack of familiarity with them; therefore not only factual determinations but also normative determinations made under such deficiency are lacking, and there is no reason to assume they are correct and to obey them. As I explained there, a posek cannot adjudicate a situation that is so far from his world and which he does not know first-hand. This applies not only to ordinary poskim but also to the Sages of the Talmud.

Conclusions regarding the trans issue

As noted, the principal question is the status of a trans man or trans woman. In both cases sex and gender do not align, and therefore the answer depends on the lomdishe inquiry whether the relevant halakhot follow sex or gender. It would seem we must seek proofs from the Talmud to decide this inquiry. But we have seen that even if we had Talmudic evidence that the law follows sex (and in my view there is no such evidence, as explained above and see further in the next column), we would still not be obligated to accept it.

So what do we do? It seems we have no way to reach a definitive halakhic conclusion in this matter. What, then, should one who wishes to observe Halakha do? My answer is that we are effectively in a state of halakhic doubt—and doubt is not a vacuum. There are rules for how we act in cases of doubt, and the laws of doubt are part of Halakha. Therefore we must turn to the rules of doubt.

Before that, I will say that if someone has a clear intuitive sense of how to act—let him follow it. Although it is only an intuition and one could challenge him with “shall we act because we imagine?”, that is a very weak claim. The opposing position is also merely a sevara (reasoning), and the same challenge could be raised against it. The assumption is that if we adopt gender as the relevant criterion, we are changing the status quo and thus the burden of proof lies with us. But that is incorrect, for the claim is that this is not the status quo. All along, gender was decisive; they merely thought sex and gender were inseparable. Therefore, if gender is decisive, one could claim that this has always been the halakhic state of affairs. Moreover, sometimes when there is doubt we do not decide by the rules of doubt—stringency/leniency or chazakah—but according to the costs of each option. If adopting stringency in doubt exacts a heavy price, there is room to be lenient. Poskim tend to be lenient in times of duress, and I explained the difficulty and rationale for this in my article on leniency and stringency. In column 570 I also noted that the definition of leniency and stringency depends on the costs of the two sides, not necessarily on whether the action is active or passive (ko’ach vs. shev v’al ta’aseh; see also columns 416–415).

After all that, if indeed we remain in doubt, we should act according to the rules of doubt: de’oraita doubts lead to stringency; de-rabbanan doubts to leniency. There is no vacuum here, and one can observe Halakha even in these matters. Moreover, observing Halakha is not necessarily the conservative approach of determining status by sex rather than gender. My own sevarot have standing, and if I have no clear sevara, there are, of course, the rules of doubt.

Back to first- and second-order psak

Up to this point I have done only conceptual analysis. I have not dealt with sources, and I have even shown that even if there were relevant sources, they would have little standing. My conclusion is that, in these matters, conceptual analysis is the whole job we must do. Once we complete this stage, we reach the conclusion that halakhic study and precedents have almost no role here.

Second-order poskim begin with Talmudic sources, Rishonim and Acharonim, and deriving conclusions from their words. But conceptual analysis shows us that this approach is mistaken, and not only is it not binding—it can lead us to incorrect halakhic conclusions. Adhering to the Talmud’s conclusions, even if there are any here (and I think there are not), is no guarantee of correct halakhic conduct. It is possible that one who cleaves to the Talmud will in fact act in a way that does not accord with Halakha and the will of God (assuming the Talmud errs in these matters and that there is no obligation to obey it). At least in these cases (and in my view this is always so), first-order psak is more reliable and fitting than second-order psak. Moreover, a first-order posek also upholds the value of autonomy, so even if he were mistaken, there is still value in acting in this way (see my essays on autonomy here and here, and also columns 304, 626, and more).

Halakhic conclusions

There are quite a few questions regarding trans people. To conclude this column I will try to sketch briefly a schematic halakhic map as it emerges from the analysis I have offered. Further details will appear in the next column.

First and foremost is the question of the surgery itself. In Halakha there is a prohibition of sterilization/castration both for animals and for humans—that is, it is forbidden to eliminate the ability to have children. For men this is a Torah prohibition; for women there is a Tannaitic dispute (Tosefta Makkot 4:4), and practically almost all poskim hold that it is only rabbinic for women. It is plausible that this is because a woman is not commanded in “be fruitful and multiply,” but at most in something lighter (“lashevet yatzrah”—to populate). Therefore, in my view, here the issue does not hinge on the status of the trans person—whether male or female. One who has the ability to procreate may not neutralize it, regardless of whether he is considered male or female. In other words, regarding the obligation to have children and the prohibition of sterilization, it is plausible that status follows sex and not gender. Again, this is a sevara without clear sources, but absent clear evidence to the contrary, we follow sevara. This applies to a trans woman (male sex undergoing surgery to become female). For a trans man the prohibition is lighter (since in terms of sex “she” is female), and in cases of great necessity there is room to permit.

Regarding obligation in commandments, it would seem we are in doubt, and we should act according to the rules of doubt. However, reason suggests that in this matter specifically, gender (and not sex) is decisive. There is little sevara that physiological signs determine one’s halakhic standing. Regarding time-bound positive commandments, the Abudraham explains this in terms of a woman’s role (home and childrearing), and this obviously seems more fitting to gender than to sex. Moreover, some explain it as related to the nature of women, and it is very plausible that this is a mental/psychological nature rather than a physical one. Therefore I tend to think that for this matter we follow gender.

Regarding inclusion in a minyan, in my view there is room to include both types (trans men and trans women), due to a double doubt: doubt whether he/she is halakhically male or female, and doubt whether women cannot be counted in a minyan. In my opinion there is no impediment to including women in a minyan (see column 598), so there may be no doubt at all and they can be included.

As for yichud, women’s sections (which are a custom; there is no need to exaggerate their necessity—unless there is immodest dress), and the like, it seems that here the issue is arousal; therefore what matters is the person’s physical appearance and the sexual orientation of those around (though one can debate this somewhat). That is, if we are dealing with seclusion with a straight man, then a trans woman would be prohibited. Conversely, a trans woman should sit in the women’s section and not among the men; the reverse for a trans man.

Regarding “rounding the head” (pe’ot), this is interesting. R. Akiva Eger (to Shulchan Arukh, Yoreh De’ah §267) discusses the prohibition of rounding the head for a slave, who is halakhically compared to a woman. He argues there is a dispute between Bavli and Yerushalmi whether a slave is an upgraded non-Jew (i.e., a non-Jew whom the comparison to a woman obligates like a woman) or a downgraded Jew (a Jew obligated in all commandments, whom the comparison to a woman exempts from those women are exempt from). He claims that according to the second view there is a prohibition of rounding the head, since women are not exempt from it but rather it simply does not apply to them. For a slave it does apply, and therefore he would be prohibited like a man. According to the first view, a slave would be exempt, since there is no source prohibiting it upon him (for women are not prohibited; it simply does not apply). He is of course assuming that women are not exempt from the prohibition; it just does not apply to them. According to this, a trans man would be included in the prohibition, for with him it does apply. Incidentally, this suggests that a slave is an interesting parallel to our case: his gender and sex are male, but his halakhic status is like a woman; thus it seems we treat him as having “female” halakhic standing for certain laws. Perhaps we can learn from him regarding various halakhot whether they depend on sex (then he is like a man) or on gender/standing (then like a woman).

Regarding women’s dress / “a man’s article on a woman,” one must also consider whether this depends on sex, gender, or sexual orientation. If it is a safeguard against prohibited acts, then it is like women’s sections and yichud. If it is an intrinsic prohibition, perhaps it depends on gender. Here there is, I think, a real doubt, and in Torah matters there is room to be stringent.

In the next column we will read R. Y. Katz’s article critically; there I will enter more into specific halakhic questions and considerations.

[1] I will note that it is not clear to me how this acquaintance’s partner sees herself: does she regard herself as a lesbian or as straight? I assume as a lesbian, since that is what political correctness demands, and in those circles it is the binding religion.